Land Contest in Early Utah

LAND CONTEST IN EARLY UTAH

By Gustive O. Larson

The problem of land ownership in America began when Europeans first set foot on soil occupied by another people. After a century of confusion the Constitution of 1789 provided authority for the new government to treat with the natives in relation to common boundaries. Accordingly, within a decade the results of several treaties were unified by Congress into a continuous line from Lake Erie to Florida. When the white population through expansion breached the line, further treaties moved it westward. The Louisiana Purchase in 1803 provided ample room for "Indian Country" west of the Mississippi, and three decades later a "removal policy" placed the red men west of a line determined solely by the American government. Nevertheless, native rights to the soil continued to be recognized beyond the Mississippi, and when the white settlers pushed into the middle-west they relied on their government to negotiate new treaties extinguishing Indian land titles according to the latest advance.

But in the Great Basin circumstances differed. Here the Mormon colonial projection had overshot the margin of easy acquisition of land titles into a political vacuum where peculiar circumstances found the federal government indifferent to repeated calls for help. No government stood ready to push the natives one step further by a treaty involving extinction of land titles. Hence native rights, which were still acknowledged by the United States government, were violated by Mormon colonization. For more than two decades the red men saw every tribal homeland occupied by the invader and the game driven from their hunting grounds. Conflicting claims developed, to be resolved between three groups, each viewing the situation through different eyes. There were the United States government extending sovereignty over its recent territorial conquest, the native defending his heritage, and the Mormon moving in to establish squatters' rights through utilitarian occupation.

Manifest Destiny which dictated conquest of the Southwest may have shunted the Latter-day Saints into a region "abandoned to the Mormons for its worthlessness." But the religious exiles, on the contrary, viewed it as expressed by Brigham Young: "We have been driven from the habitations of man and hurled ... as a stone from a sling, and we have lodged here in this goodly place . . . just where the Lord wants His people to gather." With this conviction of divine sanction of their location and uncoupled from the processes of the federal government, the Mormons made their own laws. A committee was appointed "to draft and report to the convention a constitution under which the inhabitants of said territory might govern themselves until the Congress of the United States should otherwise provide by law."

Among the laws developed were those governing land surveys and disposition of property. The first governing principles were announced upon President Young's arrival in Salt Lake Valley. "No man should buy or sell land. Every man should have his land measured off to him for city and farming purposes, what he could till. He might till it as he pleased but he should be industrious and take care of it."

The first survey of Salt Lake City was begun by Orson Pratt and Henry S. Sherwood on August 2, 1847. Subsequently the city was divided into ten-acre blocks, each containing eight 1 1/4-acre lots. Extending away from the city proper were larger areas of five, ten, twenty and forty acres measured off for farms and pastures. At first the tens and twenties were enclosed as one big field by co-operative fencing. Both the city homesites and the outlying fields were distributed free to the settlers through drawing lots. Within a year of arrival in the valley eight hundred and sixty-three applicants had drawn property totaling 11,005 acres.

Salt Lake City became the pattern for the far-flung communities of Mormondom. Land surveys surrounding the town and cities were deliberately extensive in anticipation of rapid population growth as "the Gathering" would pour its thousands into "Zion." Responsibility

for classification and distribution of lands among the newcomers rested upon the local bishops.

The State of Deseret, organized in March, 1849, could make no provision for disposal of public lands. However, it did undertake to provide rights of occupancy in anticipation of subsequent confirmation of its action by the federal government. By legislative action on March 2, 1850, it created the office of Surveyor General and County Surveyor whose duties were to supervise and certify to all surveys. Certificates approved by them were to constitute titles of land possession when properly registered with the county recorder. The land itself came free to the applicant but a charge of one dollar and fifty cents was made to cover survey and recording costs. An ordinance of February 12, 1851, required the owner to enclose his land with a fence four and one-half feet high to protect against animal trespass.

When the Organic Act of the Territory of Utah, in September, 1850, also failed to provide for acquisition of land titles, further provisional measures became necessary. An act of 1852 placed the public lands under jurisdiction of the county courts. These were empowered to grant permits of occupancy to residents and users of described pieces of property. Transfer of ownership was provided for through quitclaim deeds supported by survey certificates. Also, as protection against trespass and to encourage small land holdings in order to make room for additional settlers, each owner was required, by an act in 1853, to enclose his property with a pole fence within one year. Fencing was considered of such importance that breaching it to "jump a claim" was made a criminal offense. In 1855 the processes of transfer were extended to unsurveyed as well as surveyed lands, and in 1861 a law was enacted establishing land ownership through enclosure.

Water and timber, being equally vital to survival, were also declared communally owned and placed under jurisdiction of the county courts. The objective in their use was equitable distribution to the greatest number. With reference to water the "doctrine of appropriation" developed in Utah in contrast to the law of riparian rights in less arid states. Timber for fuel and construction purposes existed only in the canyons, and building of access roads into wooded areas became community enterprises under direction of the bishops. Upon completion of a road, timber became available to all upon payment of a small maintenance fee. A strict policy of conservation permitted use only of dead wood for fuel. Frequently the legislature made exclusive grants to leading Mormons with a view to centralizing responsibility and minimizing controversy in the use of resources. A typical grant was made to Ezra T. Benson on January 9, 1851:

An ordinance in relation to the timber in the Kanyons and mountains . . . passed December 3, 1850.

Section 1. Be it ordained by the General Assembly of the State of Deseret, that the exclusive control of the timber in the kanyons and mountains leading into Tooele Valley ... is hereby granted to Ezra T. Benson, who is hereby authorized to control said kanyons, to work roads into them, and to direct when, where, and by whom timber may be taken out therefrom. Section 5. Nothing in the above ordinance shall be so construed as to prevent, or hinder the citizens of said counties from getting timber, wood, or poles in any of said kanyons for their own use by observing the above regulations.

While in no sense intended as monopolistic, these grants excited early non-Mormon opposition.

Salt Lake Valley stretched as an indefinite borderline between Shoshoni and Ute Indians. A "digger" band from each camped near the newly arrived Mormons on July 31, 1847. The record states,

"The Shoshones appeared to be displeased because the brethren had traded with the Utes. The Shoshones claimed that they were the owners of the land and that the Utes had come over the line to interfere with their rights. They signified to the brethren by signs that they wanted to sell them the land for powder and lead." The next day the pioneers gathered for church service under a hastily prepared bowery. Heber C. Kimball, who spoke for Brigham Young,

discouraged the idea of paying the Indians for the lands, for if the Shoshones should be thus considered, the Utes and other tribes would claim pay also. "The Land," said the speaker, "belongs to our Father in heaven, and we calculate to plow and plant it; and no man will have power to sell his inheritance, for he cannot remove it; it belongs to the Lord. We will all have farms and cultivate them and plant vineyards. And if we are faithful, five years will not pass away before we are better off than we ever were in Nauvoo."

Within a week fifty-three acres had been plowed and planted with some patches of corn and potatoes already greening the gray landscape.

Although the offer of the natives to sell their land was not taken seriously, its implications of ownership continued to haunt the Mormons in varied forms for two decades as they occupied every Indian homeland in the shadows of the Wasatch. "We come as brothers," they said in effect, to the dispossessed, "to teach you to make your lands produce and if we drive the game from your hunting grounds we will help you stock them with cattle." The Ute Chief Walkara voiced a typical Indian response when he said, on the shores of Utah Lake, "The water (and the land) are mine. But tell Brigham that the Mormons may use them. We want to trade." So, without treaty or legal process, the choice lands passed into Mormon control while the natives contented themselves with the expedient of trade.

The Mormon "Kingdom" was exclusive by circumstance and by intent. The "Gentile" who came among them as prospector, merchant, or territorial appointee, was an intruder; and when he multiplied in Zion he became the cause for much concern. It was doubly so as the outsider represented the federal government to which accounting would have to be made in the appropriating of its territory. So a defensive movement developed against the Gentile in the form of reactivation of the "law of consecration." This program, tried with inconclusive results in Missouri, involved the transfer of individual property to the church to be received back "consecrated" to the service of the Kingdom. More than a third of the membership of the church entered the movement in 1855-56 by signing over their individual property to Brigham Young as Trustee-in-Trust on especially prepared forms. The president himself turned in property in the amount of $199,000.00. As the plan progressed it became one more ground for a general complaint against the Mormons in Washington, which caused President Buchanan to send an army to put down a so-called rebellion in Utah. Before the economic experiment was abandoned in face of the military invasion, the defensive movement developed into a fullblown "reformation" in 1856 in which the local Gentile found little favor.

FEDERAL LAND SURVEYS

It was into this situation that the United States Surveyor General was introduced when he arrived in Salt Lake City on July 27, 1855. The legislative assembly had petitioned Congress for a land survey on March 6, 1852, and President Pierce the following year recommended that the public land system be extended over Utah "with such modifications as the peculiarities of the territory require." Congress responded favorably and David H. Burr was accordingly appointed in 1855 to commence operations in Utah. After establishing the initial point for the survey at the southeast corner of the Temple Block where Brigham Young had previously directed the Mormon survey to commence, he proceeded by contract to determine the principle base and meridian lines from which the survey was extended throughout the valley. Other contracts carried the operations into surrounding areas until over two million acres had been surveyed at the cost of ninety thousand dollars when the "Utah War" brought the survey to a close in 1857.

Unfortunately, both surveyor general and much of his survey met official disapproval. The Mormons charged Burr with fraud and delinquency in his operations. Brigham Young wrote to Delegate John H. Bernhisel:

The surveying is a great humbug. They have got their own party and surveyors imported for the purpose and I am told the surveyors have no trouble in making about one thousand dollars per month and that all they do is of no earthly benefit; they stick down little stakes that the wind could almost blow over, neither plant charcoal, nor raise mounds. Not a vestige of all they do will be left to mark where they have been in five years.

The Indians also watched the proceedings with disapproval. Wrote Burr on December 31, 1855: "Some danger has been apprehended from the Indians. They exhibit some uneasiness about the survey of their lands as they call it, and have made some threats. . . . Their chief (Shoshone) recently sent a delegation to the Indian Agent at this place to know why we were surveying the country before purchasing it of them." Soon his letters carried reports that Mormons were prejudicing Indians against the surveyors who were represented as government agents preparing to wrest the land from both Indians and Mormons." Before the end of a year in Utah, Burr made a triple charge against the Mormons: (1) The territorial legislature was granting exclusive canyon rights of government property to certain of its members; (2) Salt Lake City exceeded, in its claims, the area allowed for a townsite described by the Congressional Act of May 23, 1844; and (3) The Saints were conveying their holdings by deed to Brigham Young as Trustee-in-Trust for the church. These were causes, he suggested, for government intervention in Utah.

A committee of rugged Mormons soon waited upon the surveyor general, who was confronted with the charges made and warned against repetition of such messages. A surveying contractor was mauled on the streets of Salt Lake City, and as threats of further violence spread through the community, Burr abandoned his post in July, 1857, without leave and fled to Washington. After making serious charges against the Mormons in his report to the U.S. Land Commissioner, he asked permission to return to his post by overtaking the Utah-bound military expedition. He was, however, dismissed from office and charged with fraud and disregard of regulations in the performance of his duties as surveyor general in Utah. These charges were later confirmed after careful field investigations in 1860 by his successor, S. C. Stambaugh.

Brigham Young, as Superintendent of Indian Affairs, and the territorial legislature repeatedly requested congressional action toward extinguishment of Indian land titles in Utah as the first step towards ownership by the settlers. A memorial on March 6, 1852, asked Con- gress to authorize the Indian Superintendent to make treaties with and purchase the lands of the local tribes. In December, 1853, Governor Young pointed out the desirability of locating the natives on a reservation apart from the white settlements, and in 1859 the legislature, in anticipation of the establishment of a land office, made provision for delivery of title to certain claimants. That same year a memorial to Congress urged legislative recognition of the peculiar circumstances surrounding Mormon desert colonization. The Pre-emption Law of 1841, granting one hundred and sixty acres upon condition of fourteen months' residence on the land was not applicable to the Mormon farmvillage system. Residence was in the village, and few of the surrounding farms included more than twenty acres with most of them averaging ten.

By this means (read the memorial), from fifty to one hundred farmers cultivate the same section, which is watered by a canal owned by each agriculturist, in proportion to the area of his farm, meadow or garden, . . . Your memorialists would therefore respectfully pray your honorable body to pass a law enabling the occupants of such portions of lands to appoint one of their number an agent who shall be authorized to pre-empt and enter said lands in a body, and distribute the same by giving title to proper claimants.

Congressional response to all such petitions was delayed by reports from federal agents in Utah relative to "Mormon land monopoly," "opposition to public surveys," and "interference with Indian affairs." Surveyor General Stambaugh upon completion of his Burr investigation recommended against further surveys until establishment of a land office would make possible the sale of lands already surveyed. "And," he added significantly, "until a different policy may be devised by Congress to induce other than Mormon emigration to the Territory."

When Samuel R. Fox succeeded Stambaugh as surveyor general in September, 1861, he was reminded by Commissioner Edmunds of the General Land Office that while two million acres of land had already been surveyed in Utah, not one had been sold to offset surveying costs. Ignoring Utah's numerous petitions, he said that there had been no demand for land purchases and further stated that "it is not contemplated to make any additional surveys in your district until provision is made by Congress for the sale of the public lands already surveyed." In 1862, the Utah surveying district was consolidated with that of Colorado Territory and all of its archives removed to Denver. The federal door, which had been opening to land acquisition in Utah was closed for another six years.

EVENTS DURING SUSPENSION

In the meantime events were shaping to effect not only reopening of the survey district but the establishment of a long-delayed land district. To the benefits of the Pre-emption Law enjoyed by citizens of the surrounding territories and anticipated by Utah citizens, was added the Homestead Law of 1862. These two laws, however inapplicable to the Utah situation, became the gateways through which most of her people would ultimately enter into land ownership. Also the townsite laws of 1864-65 were liberalized by a Congressional Act of March 2, 1867, dropping the minimum lot cost from ten dollars to one dollar and twenty-five cents. President Lincoln set aside the Uinta Basin as an Indian Reservation in 1861, which act was confirmed by Congress on May 5, 1864. Then, on February 23 of the year following, that body passed "An Act to extinguish the Indian Title to lands of the Territory of Utah suitable for agriculture and mineral purposes." Accordingly, government officials and Indian chiefs, representing the principal tribes in Utah, met and signed a treaty at Spanish Fork on June 8, 1865. By this instrument the Indians relinquished claim to all lands in the territory except those reserved in Uinta Valley to which it was expected most of the natives would be gathered. Here they were to receive certain benefits to be paid over a period of years.

Unfortunately, the treaty after four years delay was rejected March 15, 1869. Meanwhile, treaty-making with the Indians came into political disfavor which crystalized into congressional action on March 3, 1871, providing "that no Indian nation or tribe within the territory of the United States should thereafter be recognized as an independent power with whom the government might contract by treaty. . . ."

Consistent with the intent of the Spanish Fork Agreement, the earlier Indian farms in Utah, which had already been abandoned, were surveyed and their combined acreage (92,637) made ready for sale. Also Congress acted in harmony with the intent of the treaty by reopening the Utah land survey in 1868 in preparation for disposal of public lands. It took for granted the extinguishment of Indian land titles without assuming responsibility for its reciprocal obligation to the native.

Substantial decreases in the territorial boundaries were effected during the period of Utah's suspended surveys. A slice of her eastern border was added to Colorado and her northeastern corner transferred to Nebraska in 1861. Also, that same year 73,574 square miles lying west of the thirty-ninth meridian were formed into Nevada Territory, which, with additional slices from Utah, achieved statehood before the original pioneer community was given a federal land district. The Mormons, who were the first to colonize between the Rockies and the Sierra, became the last to enjoy the privileges of land ownership.

While the Indians, as a result of the failure of the 1865 treaty, continued to assert their inherent rights to the public domain, the Gentiles in growing numbers began challenging Mormon squatters' claims on the ground that, until the national government released its proprietary rights to the soil, local titles were valueless. Their interest in Utah lands had been growing in proportion to coal and other mineral discoveries and the advance of the transcontinental railroad. These were indeed "inducing other than Mormon migration to< the Territory" and creating a Gentile as well as a Mormon demand for renewal of the public lands survey and establishment of a land office in Utah. Increasingly they challenged Mormon land monopoly through "jumping" unoccupied pieces of property to which value had accrued through pioneer industry. Such tempting areas included the race course and militia parade ground west of Jordan River, some private claims on the opposite bank, property in the Warm Springs area and on Arsenal Hill, and an open field near the Twentieth Ward. Delegate W. H. Hooper relayed pertinent information on this subject to the General Land Office:

I beg leave to call your attention to the following extract of a letter . . . "several land claims in the vicinity of the city (Salt Lake) have been jumped recently, three or four of them by gentlemen connected with the Land Office in this city, viz. Mr. Clement, brother of the Surveyor General . . . W. H. Hoffman, who is attending to Maxwell's business during his absence in Washington (Mr. Maxwell, register of the Land Office). Last week Mr. Hoffman took possession and claimed a city block. Some of these claims were enclosed and improved by water ditches years ago."

The Mormons, jealous of the fruits of their labors, were in no mood to regard land jumping lightly. Brigham Young thundered from the pulpit on August 12,1866:

If you undertake to drive a stake in my garden with an intention to jump my claim there will be a fight before you get it; if you come within an enclosure of mine with any such intent, I will send you home, God being my helper.... We have spent hundreds of thousands of dollars in taking out the water of our mountain streams, fencing in farms and improving the country, and we cannot tamely suffer strangers, who have not spent one days labor to make these improvements to wrest our homesteads out of our hands.

Again, on December 23 he threatened, "If they jump my claims here I shall be very apt to give them a pre-emption right that will last them to the last resurrection. . . . The Latter-day Saints will never again pull up stakes and give their possessions to their enemies."

It was inevitable that the contest, which rose to a high pitch in the sixties, should become violent with life and death involved. The murder of John King Robinson on October 22, 1866, was linked with his having filed upon Warm Springs property inside Salt Lake City's extended boundaries. A shack erected near the Jordan, together with its occupant, was dumped into the river, and threats of similar treatment persuaded others to leave the territory. The prospect of gentile acquisition "caused the 'city fathers' to survey the land lying east of the 20th ward and the 11th ward and give it out gratuitously to the brethren by drawing lots."

Federal officials in Utah, anticipating establishment of a land district in the territory, were as eager to control the processes of distribution as were the Mormons to hold on to their properties. A petition to the President, dated August 29, 1866, was accompanied by a letter of transmittal from acting Governor Amos Reed, which revealed gentile ambitions in relation to control of the program.

Hon. Joseph S. Wilson . . . You will find accompanying this a paper signed by myself and other Federal officers asking the President to establish a land office in this city and the appointment of proper officers to conduct it . . . we now recommend the appointment of William M. Johns, late Lieut. Col. 3rd Vet. Battalion, California Inf., and lately ... in command of the U.S. military forces near this city, as Register, and Stephen E. Jocelyn, late Captain in the same organization, as Receiver of this Land Office. These gentlemen have served for the greater part of the rebellion in this Territory. They have been most efficient, energetic and patriotic officers . . . They are now out of service and settled here. . . . Now, Brother Joseph, (as the Mormons would say,) we are in earnest in this matter. Every interest public and private require this to be done. . . .

Commissioner Wilson concurred with the above. In his report to Secretary of Interior on October 2, 1866, he wrote:

The Surveyor General reports the discovery of rich veins of argentiferous galena and silver which are attracting many miners to Utah, who are building towns in sections of the country heretofore imperfectly known and hence the establishment of a land office is imperatively demanded, with such additional surveys as settlers may require in developing the resources of the Territory.

He recommended that the lands already surveyed in Utah be offered for sale. "This policy it is believed would bring to the Territory loyal settlers and afford them opportunity to acquire title."

Governor Charles Durkee, who, in appreciation of Mormon colonization, had urged federal action a year earlier, repeated his message to the territorial assembly, December 10, 1866:

It is of highest importance to our settlers that they be enabled speedily to avail themselves of the beneficent provisions of the Homestead Act. The occupied lands of the Territory have been reclaimed from their desert state by a marvel of persevering industry, and the title of the occupants who have in truth created for the lands their only value should be placed beyond legal question. I would be pleased to unite with you in a memorial to Congress soliciting an appropriation for completing the public surveys, the appointment of a Surveyor General for the Territory and the opening of an office at this city for the sale and entry of public lands. Under the present laws title to the city and town sites can be perfected, and I urge in these cases the desirableness of immediate action.

Acting on the last suggestion, a number of communities made application through the Land Office in Denver for entry of townsites, only to be reminded from Land Commissioner Wilson in Washington on February 7, 1868: "There being no organized land district in Utah Territory, entries of townsites therein, cannot be allowed at present. The applications however are placed on file for future consideration."

The accumulation of townsite applications waiting the creation of a land district in Utah emphasized the peculiar nature of the Mormon communities. The territorial legislature, in the process of incorporating cities and towns, allowed liberal boundaries in order to include the surrounding fields as well as the residential areas. It was a defensive movement on the part of the Mormons to preserve as much land as possible for the original settlers in Utah. The Gentiles protested vigorously on grounds typically expressed by George R. Maxwell, former register, that "the corporate limits of some city or town extends over all the available arable lands of Utah . . . the reason of which is obvious, viz. in plain terms it is to prevent the Gentiles from acquiring title to the public lands. . . ."

In the main, the protests availed little. When the very broad Congressional Townsite Law of March 2, 1867, failed to cover the area embraced in Salt Lake City, a memorial to Congress won as an amendment, "An Act for the Relief of the inhabitants of Salt Lake City in the Territory of Utah." It read in part:

That the words "not exceeding five thousand in all" contained in an act entitled "An Act for the Relief of the Inhabitants of Cities and Towns upon the Public Lands" . . . shall not apply to Salt Lake City in the Territory of Utah; but said act shall be so amended and construed in its application to said city that lands may be entered as provided in said act for the full number of inhabitants contained in said city not exceeding fifteen thousand.

On October 3, 1867, Mayor Daniel H. Wells submitted a declaratory statement, with accompanying plat, of his intention to enter Salt Lake City under the Congressional Act of March 2, 1867. After five years, during which conflicting claims were eliminated, certificate of title was granted on June 1, 1872.

LAND OFFICE OPENED

Congress responded favorably on July 16, 1868, to a memorial introduced by Delegate Hooper from Utah's territorial assembly, by passing an act "to create the office of Surveyor General in the Territory of Utah and to establish a land office in said Territory and extend the homestead and pre-emption laws over the same. . . ." In his letter of September 26, appointing John A. Clark as Utah's surveyor general, Commissioner Wilson instructed:

You will select as the sphere of surveying operations such localities as the public interest shall require including actual settlements and where mining operations are carried on under the provisions of an Act of Congress approved July 26, 1866. As the Union Pacific Railroad is rapidly progressing westward and will likely reach Utah Territory the next fiscal year, you will take the requirements of that road into due consideration and direct field operations in the region through which it will pass so that selections of lands granted to that Railroad may be made as fast as the building thereof progresses. ...

At long last the citizens of Utah were to receive the benefits of land ownership — not because of two decades of heroic desert conquest, but because a government, unresponsive to their earlier petitions, finally decided that "other interests" justified the action. Clark arrived in Salt Lake City in the fall of 1868 as surveyor general, followed soon after by C. C. Clements as register and Lewis S. Hill as receiver of the public moneys. This combination was changed within a year when George R. Maxwell succeeded Clements and the latter assumed the responsibilities of surveyor general. Commissioner Wilson, reporting to the Secretary of Interior on November 5, reviewed progress toward land ownership in Utah over the past fifteen years:

Surveying operations were inaugurated in Utah in the year 1855 and continued to 1857. During that time, 2,425,339 acres were surveyed. In the fiscal year ending June 30, 1867, an area of 92,637 acres were surveyed . . . such area being vacated Indian reservations, increasing the surveyed lands in the territory to 2,517,912 acres. ... No lands have been disposed of yet in Utah.

Much of the early surveying had been wasteful and contrary to regulations. To suggestions for resurveys Commissioner Wilson replied on January 29, 1869: "In reference to the suggested resurveys ... I have to say that no> such service can be undertaken as there is no positive evidence that former surveys are unavailable and for the reason that moneys appropriated for public surveys cannot be applied to resurveys."

The Land Office opened on March 9, 1869, and from the beginning found itself swamped with business. After two- decades of insecurity in face of unquieted Indian titles and gentile challenge of their squatters' rights, the Mormon settlers found relief in legal ownership of their lands. Gentiles, having drifted into the Mormon Kingdom from the westward migration, or through commerce, political appointment, military assignment or mineral prospecting, were no less eager to possess a slice of the once rejected corner of the public domain.

During the first six months of 1869, 148,403 acres were acquired by the citizens of Utah. Of these 51,638 acres sold for cash at one dollar and twenty-five cents per acre, and 96,765 were taken under the Homestead Law. The commissioner's report as of October 27, 1870, showed that a total of 208,073.93 acres had been taken up. At that time 3,211,508 acres had been surveyed.

Notwithstanding congressional failure to provide for it, acquisition of individual land titles was expedited through joint action. A group of land owners, banding together, appointed one of their number as entryman, who, for a small fee, filed on one hundred and sixty acres in his name and then transferred the various tracts to individual owners. Townsites were acquired similarly through the mayor, or probate judge, filing as trustee for the community. Despite gentile complaints against this procedure, Mormon communities lost no time in taking advantage of the opportunity to acquire title to their homes. According to Commissioner Wilson's report of November 1, 1869: "The town site law has given new impetus to building cities and towns on the public domain. . . . During the past year applications have been made to file declaratory statements, under the Acts aforesaid, for a number of towns and cities upon the public land, sixteen of them being in the Territory of Utah."

Looking back upon the long struggle for land ownership in Utah, the historian ponders the question of federal discrimination against her early settlers. Through failure to extinguish Indian land titles and to establish a local land office, the national government withheld the blessing of home ownership in the Mormon territory far beyond its readiness to receive it. The first colonizers in the intermountain region were compelled to watch their neighbors avail themselves of the benefits of the Pre-emption and Homestead laws and even win statehood while they still labored under provisional government which could neither clear Indian titles nor guarantee squatters' rights. The response of a generally liberal government in the distribution of its frontier lands was grudging indeed in relation to appeals from Utah. The explanation lies in a conflict of interest which developed in Utah resulting primarily from certain peculiarities of her colonizers and their methods of colonization.

When the public survey was first extended to Utah in the early 1850's already sufficient deviation from the frontier norm had appeared to prompt President Pierce to advise a survey "with such modification as the peculiarities of the Territory require." In 1861 Surveyor General Stambaugh recommended postponement of the survey until "other than Mormon emigration" could be induced to the territory. Commissioner Wilson in 1866 interpreted delays in Utah land surveys as due to an "anomalous condition of affairs" and urged adoption of a policy to bring "loyal settlers to the territory."

The first surveyor general, David H. Burr, showed little tolerance for these "peculiarities" of the Mormons when they reported his surveys to Washington as fraudulent. He struck back with accusations of illegal timber land appropriations, land monopoly, deeding of private property to the church and interference with the Indians. This unfortunate beginning in land surveys added fuel to earlier fires of prejudice already kindled in the nation's capital by disappointed "runaway officials" in 1851. More fuel was added by charges of federal agents preceding the Utah War of 1857-58, and by a continued stream of correspondence between federal agents in Utah and their department heads in Washington.

Whether soundly based or not, hostility born of misunderstanding and mistrust between Utah Mormons and Gentiles resulted in negation of normal progress towards public surveys and land sales. Not until the rivalry of the opposing parties came to focus in a common desire for land acquisition did Congress respond to their petitions for renewal of suspended surveys. When gentile mining interests and the transcontinental railroad made common cause with Mormon agriculture in demanding land titles, victory was not far away. It would undoubtedly have come sooner if carpetbag government with its divisive influences could have yielded to statehood for Utah in the 1850's when she was prepared for it.

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